Law Commons^™

A Positive Dialectic: Beps And The United States, Reuven S. Avi-Yonah

Articles

This essay addresses the interaction between the changes in the international tax regime identified by Mason and U.S. international tax policy. Specifically, I will argue that contrary to the general view, the United States actively implemented the Organisation for Economic Co-Operation and Development (OECD)/G20 Base Erosion and Profit Shifting (BEPS) recommendations through the Tax Cuts and Jobs Act of 2017 (TCJA). Moreover, the changes of the TCJA influenced the current OECD effort of BEPS 2.0. Thus, the current state of affairs can be characterized as a constructive dialogue: The OECD moves (BEPS 1), the United States responds (TCJA), the OECD …

The Tax Treatment Of Haircuts In Financial Reorganizations, Aurelio Gurrea-Martinez, Vincent Ooi

Research Collection Yong Pung How School Of Law

Over the past few years, Singapore has implemented various ambitious insolvency reforms aimed at making the country an international hub for debt restructuring. This article argues that while Singapore has put in place one of the most sophisticated restructuring frameworks in the world, some tax reforms might be useful to maximise the potential of this new restructuring framework. Namely, it will be pointed out that the tax treatment of debt forgiveness granted by creditors in corporate reorganisation (‘haircuts’) should be reviewed. Under the current legislation, these haircuts may be treated as taxable income. As a result, financially distressed debtors may …

Tax Treaties, The Constitution, And The Noncompulsory Payment Rule, Reuven S. Avi-Yonah

Articles

US Tax treaties have been regarded as self-executing since the first treaty (with France) was ratified in 1932. Rebecca Kysar has argued this raises a doubt on whether the treaties are constitutional, because tax treaties (like other treaties) are negotiated by the executive branch and ratified by the Senate with no involvement by the House, and all tax-raising measures must originate in the House under the Origination Clause (U.S. Const. Art I, section 7, clause 7). Her preferred solution is to make tax treaties non-self executing, but that would reverse the universal practice since 1932, and is therefore unlikely. Moreover, …

Constructive Dialogue: Beps And The Tcja, Reuven S. Avi-Yonah

Law & Economics Working Papers

US international tax law is commonly conceived as developed in the US and influencing the development of other countries' international tax law. This paper will argue that in the case of the TCJA, the US legislation was heavily influenced by the OECD BEPS project, and that the continuing OECD work in Pillars I and II is likely to have a similar influence on the future development of US international tax law.

What Can The Oecd Learn From The States?, Richard Pomp

Faculty Articles and Papers

In this article, Professor Pomp argues that the OECD should look to the American states for insight into taxing cross-jurisdictional corporations. In the early 20th century, the states had to respond to the challenge of taxing domestic interstate corporations. While these corporations posed no tax problem at the federal level, states had to respond to the reality of corporations shifting profits into neighboring tax havens. They needed a better alternative to federal transfer pricing and sourcing rules. In the 1930’s, some states began combining domestic related entities.

The growth of multinational corporations created new problems for both the states and …

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

The Rapidly Evolving Universe Of Us State Taxation Of Cross-Border Online Sales After South Dakota V Wayfair, Inc., And Its Implications For Australian Businesses, Walter Hellerstein

Scholarly Works

The US Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. dramatically expanded the subnational states’ power to require remote suppliers to collect taxes on in-bound sales to local consumers by repudiating the pre-existing, judicially created constitutional rule limiting the states’ authority to enforce such collection obligations to those suppliers with an in-state physical presence and replacing it with a ‘nexus’ rule based on ‘economic and virtual contacts’. The state legislatures reacted quickly and almost unanimously to the Wayfair decision by adopting rules imposing sales tax collection obligations on remote suppliers whose sales exceeded specified dollar or transaction thresholds. …

A Case Study: Effectively Connected Income, Jeffery M. Kadet, David L. Koontz

Articles

In this report, Kadet and Koontz continue their series of articles on various aspects of applying effectively connected income taxation to multinationals by creating an ECI case study using the facts provided in a Hong Kong decision concerning an unidentified multinational that is clearly based in the United States.

How Mobile Homes Correlate With Per Capita Income, Randall K. Johnson

Faculty Works

This study looks at the nature of the relationship between the number of state-regulated mobile homes and per capita income, so as to determine whether higher-income parts of Illinois have more mobile homes than would be predicted by the conventional wisdom. It does so by identifying a simple way to determine the nature of any relationship between mobile homes and per capita income, which the conventional wisdom assumes to be negative, if only at the county level in Illinois. The study, specifically, collects and analyzes mobile home data from Illinois and per capita income data from the U.S. Census. After …

Uniform International Tax Collection And Distribution For Global Development, A Utopian Beps Alternative, Henry Ordower

All Faculty Scholarship

Under the guise of compelling multinational enterprises (MNEs) to pay their fair share of income taxes, the OECD and other multinational agencies have introduced proposals to prevent MNEs from eroding the income tax base of developed economies by continuing to shift income artificially to low or zero tax jurisdictions. Some of the proposals have garnered substantial multinational support, including recent support from the new U.S. presidential administration for a global minimum tax. This Article reviews many of those international proposals. The proposals tend to concentrate the incremental tax revenue from the prevention of base erosion into the treasuries of the …

The Dormant Foreign Commerce Clause After Wynne, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

This Essay surveys dormant foreign Commerce Clause doctrine to determine what limits it places on state taxation of international income, including both income earned by foreigners in a U.S. state and income earned by U.S. residents abroad. The dormant Commerce Clause similarly limits states’ powers to tax interstate and foreign commerce; in particular, it forbids states from discriminating against interstate or international commerce. But there are differences between the interstate and foreign commerce contexts, including differences in the nationality of affected taxpayers and differences in the impact of state taxes on federal tax and foreign-relations goals. Given current Supreme Court …